Horse advocates anxious for First Amendment ruling

RENO, Nev. — There may or may not be too many horses on federal lands in the West, but a U.S. district judge says there's not enough judicial staff in Nevada to deal anytime soon with an appeal over First Amendment rights at wild horse roundups.

U.S. District Judge Larry Hicks told lawyers for the government and a horse protection group he won't make a ruling until after March on a case sent back to his court last year by the 9th Circuit Court of Appeals.

The lawsuit was brought by Laura Leigh, a photographer and leader of the group Wild Horse Education who says her freedom of press rights were violated in 2010 when she was denied access to mustang roundups in Nevada's eastern Lincoln County near the Utah line.

A three-judge panel in San Francisco overturned Hicks' earlier ruling and told Hicks to reconsider whether the Bureau of Land Management's restrictions on media access to roundups are constitutional.

"Courts have a duty to conduct a thorough and searching review of any attempt to restrict public access," said Gordon Cowan, a Reno lawyer for Leigh. The Reporters Committee for Freedom of the Press and National Press Photographers Association have signed on as backers as friends of the court.

Hick said at the close of a two-day hearing Wednesday that he recognizes it's an issue that "strikes deeply in people's emotions and interests."

"I also recognize the government is placed in a difficult position. It seems no matter what they do, they are going to be subject to certain controversy and challenges," Hicks said.

Hicks said Nevada's judicial district is so understaffed that four judges now oversee cases that seven judges used to handle. He added that the district's caseload has nearly doubled since it was fully staffed six years ago and that it was one of the busiest districts in the nation even then.

Ninth Circuit Appellate Judge Milan Smith Jr. said in an 18-page opinion last February the court must balance the "vital public interest in preserving the media's ability to monitor government activities against the government's need to impose restrictions if necessary for safety or other legitimate reasons."

"When the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters' safety, its real motive may be to prevent the gathering of information about government abuses or incompetence," the judge wrote.

About half of the estimated 37,000 horses and burros on federal lands are in Nevada. BLM maintains that the range can sustain only about 26,000 and conducts roundups regularly to try to get closer to that number.

Agency officials testified during the hearings this week they do their best to provide public access to the roundups and temporary holding of the animals and denied Leigh's claims she was singled out to be kept away from the mustangs.

"No one is treated any differently than any other one," testified Patricia Bute of Ely, who served as the public information officer overseeing the roundup. They said they eventually stopped public tours at one temporary facility in Nevada because interest was dwindling and the tours were costing the government nearly $2,000 per tour — a total of more than $50,000 during the period.

Horse protection advocates testified they believe the access was restricted because critics of the operations were gathering videotape documenting abuse of the animals.

"I don't believe it was a matter of diminished interest just some people quite hitting their head against BLM's wall before some of the rest of us did," said Terri Farley of Verdi, author of the children's book series, "Phantom Stallion."